faculteit: "FdR" en publicatiejaar: "2012"
| Auteur||S.E. Appelman|
|Titel||License to capture, not kill? The use of lethal force against legitimate military targets and the 'least harmful means'-requirement.|
|Faculteit||Faculteit der Rechtsgeleerdheid|
|Opleiding||FdR MA International and European Law: Public International Law|
|Trefwoorden||use of force; legitimate military target; least harmul means|
|Samenvatting||The use of force against legitimate military targets in times of armed conflict is addressed by two legal regimes, namely law of armed conflict (LOAC) and human rights law (HRL). While LOAC is clear as to the category of persons which is susceptible to lawful attack in situations of armed conflict, namely members of the armed forces and civilians who directly participate in hostilities, it is ambiguous as to the kind and degree of force permissible in attacks. The ICRC employs the principles of military necessity and humanity to argue that the use of force employed in military operations must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances. This is, however, a very liberal interpretation of the principles. The legitimate aim of warfare is the defeat or weakening of the enemy. That aim can be achieved through disablement of the greatest possible number of men. How to achieve that a legitimate military target no longer poses a threat to the governmental armed forces is for the latter party to decide. The principle of military necessity merely stipulates that when an agent of the State chooses to kill instead of capture a legitimate military target, he uses no more force than necessary to permanently disable the adversary. Since the ‘least harmful means’-requirement is also not a rule of customary LOAC, primarily because of divergent State practice, it can be concluded that the legal basis of the ‘least harmful means’-requirement cannot be derived from LOAC.
The right to life regulates the conditions under which the use of lethal force is considered lawful under HRL. One of the requirements which has to be satisfied by the attacking party is that it had no other (non-lethal) options to achieve the purpose of the operation. It follows from extensive judicial practice that the existence of an armed conflict does not suspend the applicability of HRL. Human rights treaties even apply extraterritorially when a State exercises effective control over an area. Accordingly, as far as the use of force is concerned, HRL overlaps with LOAC in situations of internal armed conflicts and belligerent occupation. The ICJ asserted that in case of collision between a legal norm of LOAC and a legal norm of HRL the applicable lex specialis prevails. The principle of lex specialis is not absolute; it determines which rule prevails over another in a given situation. Since HRL is specifically designed to govern situations in which a State exercises effective control over areas or persons, it can be concluded that it governs the use of lethal force during internal armed conflicts in areas under effective control by the State as well as in situations of calm occupation, i.e. situations of occupation where no (non-)international conflict exists in the occupied territory. It has to be emphasised, however, that the right to life is applied flexibly in difficult security situations.|
|Soort document|| scriptie master|
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